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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 922

UN's Petrie Report - civilian casualties in Sri Lanka - 'Human Shield' by terrorists

Daya Gamage - Asian Tribune Commentary
Washington, D.C. 24 November (Asiantribune.com):

Sri Lanka's Ministry of External Affairs in a repulsive statement against the just released report of Sri Lanka's 'Conduct of War' by the Internal Review Panel of the UN Secretary General has touched, among other issues, the most debated subject raised and discussed by global human rights groups, the US State Department and some member nations of the European Union: the civilian casualties during the final months - January through May 2009 - of the military confrontation between the sovereign and legitimate government of Sri Lanka and the separatist/terrorist Tamil Tigers, a non-international armed group.

The External Affairs Ministry quite rightly in its statement issued 24 November in reply to the 14 November-issued UN report highlights "No mention has been made of the intransigence of the LTTE which held the people as a human shield, and even shot in cold blood those who tried to escape to gain their freedom.

While the Report admits that the LTTE positioned its artillery among civilians, the allegation of Government shelling into civilian concentrations does not take into account the principles of self defense or reasonableness of retaliation, proportionality, or a technical analysis of the trajectories of the shells allegedly fired, to determine their source."

The Asian Tribune previously analyzed the 'internal panel' report underscoring what the UN was targeting and aiming to 'settle' with Sri Lanka - influenced by other stakeholders - while taking 'cover' behind its own 'failures' in handling the Sri Lanka issue during the intense battle between the two warring factions. We analyzed the report in a different manner giving less prominence to what the UN report said about the UNs 'dereliction of duty' but rightly highlighting the 'case' the World Body is steadily and slowly building to bring Sri Lanka toward a 'global scrutiny' which expatriate pro-separatist Sri Lankan Tamil Diaspora in the United States and other European nations has been very steadily and gradually lobbying for the past three years.

While giving the complete statement of Sri Lanka's external Affairs Ministry at the end of this commentary, the Asian Tribune endeavors here to determine what the role the State Player - the Sri Lankan state - and the non-state armed group (NSAG) - the Liberation Tigers of Tamil Eelam (Tamil Tigers) - in a situation in which the NSAG using unarmed civilians as 'human shield' as a strategy to defeat the military onslaught of the State Player have and what role both warring factions play in bringing their actions within the Geneva Conventions and the international humanitarian law (IHL).

This writer has been constantly reminding the Sri Lankan authorities who have the diplomatic responsibility to deal with international players to at least use the basics of public affairs, public diplomacy and strategic communication to cogently explain the issue of civilian casualties in a situation where the LTTE was using the human shield acknowledging the obvious that in an intense battle of the nature that occurred in the Vanni Region civilian casualties cannot be avoided.

The External Affairs Ministry statement quite rightly pointed out the discrepancies in various UN panels' civilian casualty figures.

It is this 'civilian casualty' issue that has been used, somewhat effectively by those who have influenced foreign governments, to tarnish the image of Sri Lanka as a result of Sri Lankan authorities' inability to cogently answer the critics whose primary aim is to bring this South Asian nation to a 'global scrutiny'.

This Asian Tribune commentary endeavors to answer the critics.

The issue we raise here is Current International Law Can Give Advantages to Actors who Use Human Shields.

To answer this issue we laid our hands on a professionally-written analyses by Douglas H. Fischer to the American University Law Review - Volume 57, Issue 2 December 2007 under the caption ' Human Shields, Homicide, and House Fires: How a Domestic Law Analogy Can Guide International Law Regarding Human Shield Tactics in Armed Conflict'.
Mr. Fischer in his presentation discusses how the current international law in fact gives advantages to actors who use human shields.

He opines: "International law is not silent on what responses are justified when a state is attacked by an opponent who launches attacks while hiding among civilians. Rather, international law offers ambiguous and potentially contradictory guidance to states faced with this situation by broadly authorizing the use of force in self-defense while also declaring such uses of force illegal in certain situations where actors utilize human shield tactics."

He continues: "Article 57 of Protocol I (of the Geneva Convention) places an affirmative duty on states to take certain precautions before an attack in order to avoid civilian casualties. Article 51(7) does establish a duty for defending actors, declaring that the presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favor or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.

"However, Article 51(8) adds that a failure by the defending actor to abide by the prohibitions of Article 51 does not alter an attacking state’s obligations under Article 57. In modern warfare, the effect of a defending party’s failure to live up to its duties to separate civilian and military parties is that an attacking party cannot avoid certain civilian casualties that it otherwise would have been able to prevent"

This 'defending party', in our case in thi Asian Tribune Commentary the Tamil Tigers, its psychology, tactic and motives are well defined in a Document prepared by the International Committee of the Red Cross for the 30th International Conference of the Red Cross and Red Crescent, Geneva, Switzerland, 26–30 November 2007 under the title "International humanitarian law and the challenges of contemporary armed conflicts".

(Quote) When under attack, a belligerent party that is weaker in military strength and technological capacity may be tempted to hide from modern sophisticated means and methods of warfare. As a consequence, it may be led to engage in practices prohibited by IHL, such as feigning protected status, mingling combatants and military objectives with the civilian population and civilian objects, or using civilians as human shields. Such practices clearly increase the risk of incidental civilian casualties and damage. Provoking incidental civilian casualties and damage may sometimes even be deliberately sought by the party that is the object of the attack. The ultimate aim may be to benefit from the significant negative impression conveyed by media coverage of such incidents. The idea is to ‘‘generate’’ pictures of civilian deaths and injuries and thereby to undermine support for the continuation of the adversary’s military action. (Un Quote)

The Red Cross document continues: "Confronted with enemy combatants and military objectives that are persistently hidden among the civilian population and civilian objects, an attacker – who is legally bound by the prohibition of disproportionate attacks – may, in response to the adversary’s strategy, progressively revise his assessment of the principle of proportionality and accept more incidental civilian casualties and damage."

Let's get back to the issue we raised before: Current International Law Can Give Advantages to Actors who Use Human Shields in which Douglas H. Fischer in his analysis to American University Law Review says (Quote) If military measures calculated to end a well-documented threat of rocket fire are prohibited by virtue of where the original attacks originate, then the right of self-defense has been, in effect, nullified.64 To avoid this result, anyone analyzing such a scenario should give due consideration to the attacker’s necessity before condemning the attack as violating Article 57 of Protocol I (Un Quote)

Article 57 of Protocol I (of the Geneva Convention) places an affirmative duty on states to take certain precautions before an attack in order to avoid civilian casualties.

Mr. Fischer goes on to say: "When states are faced with concealment tactics, they are sometimes forced to respond with tactics of their own that previously may have been unacceptable, such as anticipatory self-defense, “targeted killings,” or striking where they know civilians are present. When all of the parties in a conflict generally observe their duty to keep military facilities and personnel at a distance from the civilian population, it is right to expect a war with minimal collateral damage. However, since insurgencies and terrorist groups, unlike states, do not have their own civilian population, they are able to risk civilian lives without facing many of the consequences that states would encounter. Also, many non-state actors are able to arm and strike quickly, meaning that if states want to protect their own civilians, they may have to strike with such haste that they are unable to be as precise in their targeting as was previously expected."

And, Mr. Fischer concludes (and very interesting): (Quote) Since international law on this matter is based in, among other things, considerations of proportionality, it is time to question the calculations currently embodied therein. The law of war should not place states who try to follow their aims at a disadvantage. But because current international law does not fully consider human shield tactics, it is subjected to interpretations that pervert its original aims and rationales. (Un Quote)

We now give the full text of the statement by the Ministry of External Affairs of the Government of Sri Lanka.

External Affairs Ministry Statement on “Petrie report”

The Ministry of External Affairs refers to the “Report of the Secretary General’s Internal Review Panel on UN action in Sri Lanka” or the “Petrie Report” which was leaked to the media the day prior to its being formally handed over to the Secretary General on 14th November, and officially made public the same day. While this Report is an internal review of the UN’s action in Sri Lanka during the terrorist conflict, the Ministry’s attention has been drawn to certain issues with regard to allegations directed at the Government of Sri Lanka, which are regrettably unsubstantiated, erroneous and replete with conjecture and bias. The Ministry, therefore, wishes to state the following:-

The Ministry, through its Permanent Mission in New York protested against the leak of the Report on the very day after this questionable action, to the Office of the Secretary General. The “Petrie Report” is an internal document to assess the working of the United Nations system in Sri Lanka during a given period, following a recommendation in the Report of the advisory Panel of Experts appointed by the Secretary General, known as the “Darusman Report”.

While noting that both these Reports are internal advisories to the UN, it is disconcerting that the Darusman Report came into the public domain initially through a leak, and in this instance of the Petrie Report too, the unacceptable procedure of leaking has been resorted to, establishing a disturbing pattern which brings into question the bona fides of the authorship of the document and its underlying motivation. It may be recalled that following the leak of the Petrie Report, while the UN Spokesman took the position that he could not comment on a leaked Report, the author stated to the media that the penultimate draft “very much reflects the findings of the Panel”. Following formal discussions on this issue by the Permanent Representative in New York, with the UN Secretariat, the latter characterized the Report as a document prepared by an independent body over which the Secretariat and has no control. However the expectation of a sovereign Government, quite legitimately, is that the accepted procedure of first consulting with the country concerned be rigidly adopted when commissioning experts. It is pertinent to recall, in the context of a recurring pattern, that the Darusman Report was formally made available by the UN to the public on the basis that it first leaked through the media, and in fact the Petrie Report also was formally released to the media the day after its leak.

The Government of Sri Lanka does not intend to comment on the entirety of its contents. However, some of the issues raised in the Report are of grave concern to Sri Lanka, and should not be construed as the accepted position.

This Report seems to seek to endorse the baseless and discredited allegations in the Darusman Report, of an exaggerated civilian casualty figure during the last stages of the terrorist conflict, which has not been agreed upon even among the senior UN officials at the time, because of the speculative nature of the information which could not be verified. The statistics in the Petrie Report are based on “unnamed sources” quoted in the Darusman Report and unsubstantiated allegations made by NGOs and certain lower level UN officials. However, a censored section of this Report refers to a meeting of the Policy Planning Committee to discuss Sri Lanka where several participants including the then Under Secretary General for Humanitarian Affairs and the Resident Coordinator did not stand by the casualty numbers, saying that the data were ‘not verified’ and questioned the proposal by the Office of the High Commissioner for Human Rights to release a public statement containing references to the numbers and possible crimes. No mention has been made of the intransigence of the LTTE which held the people as a human shield, and even shot in cold blood those who tried to escape to gain their freedom.

While the Report admits that the LTTE positioned its artillery among civilians, the allegation of Government shelling into civilian concentrations does not take into account the principles of self defence or reasonableness of retaliation, proportionality, or a technical analysis of the trajectories of the shells allegedly fired, to determine their source.

The allegation relating to the Government deliberately restricting food and medicine to the North is another unsubstantiated statement which, as in the Darusman Report, is repeated in the Petrie publication. The attempts of the GOSL to demonstrate the fallacy of this contention from the time it emerged seem to have been dismissed in cavalier fashion in the Petrie Report. It is a well known fact that food and medicine sent to the North were monitored regularly by the Consultative Committee on Humanitarian Assistance (CCHA), which comprised officials from the Government, the UN and other humanitarian agencies, and representatives of the diplomatic community based in Colombo, including Japan, USA, Norway and the European Union. The efforts of successive Governments to provide food and medicine to the North, despite the definite knowledge that a major part of it was ending up in the hands of the terrorists, have been appreciated from the early stages of the conflict by the UN. This is amply corroborated by contemporaneous statements by the UN in Sri Lanka at the time. Further, the alleged intimidation of UN staff for delivery of humanitarian assistance is completely baseless, a position which has been endorsed by the former United Nations USG for Humanitarian Affairs and reported widely at the time in the media.

Repeated characterization of the welfare villages without any basis as “military run internment camps” demonstrate the ignorance on the part of the author of the Report, as well as resolve to ignore the efforts taken by the Government to provide basic needs and essential services to the thousands of displaced civilians who fled from the stronghold of the terrorists to the Government side. Without the assistance of the military at that juncture, the GOSL could not have handled the magnitude of the humanitarian task at hand. The military’s role in responding to any humanitarian crisis is well established the world over. It has been in this sense that the military has been engaged in Sri Lanka to overcome the challenges of the terrorist conflict.

Furthermore, while it refers to the military campaign to defeat the LTTE, the Report makes scant reference to the long series of negotiations engaged in by successive Governments to arrive at a peaceful settlement, while all those efforts and brief periods of ceasefire were used by the LTTE to regroup and rearm, to be subsequently unilaterally violated.

The Report appears to be another attempt at castigating Sri Lanka for militarily defeating a ruthless terrorist group which has held the very people it claimed to represent as human shields.

The basis for blacking out sections of the Petrie Report is unclear and it is left to the GoSL to surmise that references which may serve positively are those which have been censored. In this context, attention is drawn to the following blacked out sections, inter-alia :-

• The Policy Committee met two days later on 12th March 2012 to discuss Sri Lanka. Participants noted variously that “this crisis was being somewhat overlooked by the international community”, the policy “of incorporating a series of high level visits seem to have produced some positive results”, and that the possible involvement of the Special Advisor on the Prevention of Genocide would not indicate a suspicion of genocide but may add to the overcrowding of UN actors involved……..”.

On 30 July the Policy Committee met again at UNHQ to address “follow-up on accountability” in Sri Lanka discussing whether or not the Secretary General should establish an international Commission of Experts, many participants were reticent to do so without the support of the Government and at a time when Member States were also not supportive…..”. The Secretary General said that the Government should be given the political space to develop a domestic mechanism……..”.

This practice of redacting clearly brings into question, yet again, the sincerity and objectives of this entire exercise.

Finally, the Report, which is critical of the Member States, seems to forget that the United Nations is an inter-governmental organization whose members are equal in terms of sovereignty and dignity. We remind the author of the Report that they must act within their given mandate and the Charter, and be equal and fair in their dealings with all Member States. A Report of this nature could serve to dangerously have the statistics and unsubstantiated information acquire a life of their own. In fact, the initial statements emanating from some countries seem to disregard the fact that the basic purpose of the Report was to engage in a critical appraisal of the UN system’s performance. Ignoring this vital aspect, they have taken the opportunity to resort to criticism of the GoSL in a manner that reflects patent bias and unwillingness to examine the developments with any degree of objectivity (End Statement)

- Asian Tribune -

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